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ATTALXDER  OF  TREASON  AXD  CONFISCATION 

Ok"  TUl': 

PROPERTY    OF   REBELS 


A  LETTER  fO  THE 

HON.  SAMUEL  A.  FOOT,  LL.  D. 

ON 

THE  CONSTITUTIONiL  RESTRICTIONS 

UPOX 

ATTAINDER  AND  FORFEITURE 

FOR 

TREASON  AGAINST  THE  UNITED  STATES, 


W.  33.  ^\^ILSOISr,  D.  r>., 

Pbof.  &c.,  in  Hobai:t  College, 


JUDG-E  FOOT'S   AISrS\\^ER, 

IN  FURTHER  ELUCIDATIO  :^  OF  THE  SUBJECT. 


ALBANY: 

WEED,  PARSONS  AND.i:!OMPANT,  PRINTERS. 
1863. 


ATTAmDER  OF  TREASON  AND  CONFISCATION 

OP   THE 

PROPERTY    OF    REBELS. 


A  LETTER  TO  THE 


HON.  SAMUEL  A.  FOOT,  LL.  D., 

ON 

THE  CONSTITUTIONAL  RESTRICTIONS 

UPON 

ATTAINDER  AND  FORFEITURE 

FOR 

TREASON  AGAINST  THE  UNITED  STATES, 


AV.  D.  wiLsoisr,  T>.  r>.. 

Prof.  &c.,  in  Hobaet  College, 


JUDG-E  FOOT'S  AISTS^^^ER, 

IN  FURTHER  ELUCIDATION  OF  THE  SUBJECT. 


ALBANY: 

WEED,  PARSONS  AND  COMPANY,  PRINTERS. 
1863. 


\ 


ATTAINDER  OF  TREASON 


AJSTD 


CONFISCATION  OF  THE  PROPERTY  OF  REBELS. 


Hon.  S.  a.  Foot: 

Dear  Sir:  Some  few  days  since,  while  in  conversation  with 
you,  on  the  all-absorbing  tojoic  of  the  day  —  the  state  and  pros- 
pects of  our  country  —  I  expressed  my  doubts,  in  which  you  con- 
curred, whether  the  opinion,  which  is  so  commonly  entertained, 
whether,  under  our  Constitution,  Congress  has  a  right  to  confis- 
cate rebel  property  for  anything  more  than  the  lifetime  of  the 
rebel  who  is  the  owner  of  it,  is  correct.  You  encouraged  me 
to  investigate  the  subject;  made  some  valuable  suggestions;  and 
very  kindly  placed  at  my  disposal  the  ample  resources  of  your 
Library.  I  have,  therefore,  incorporated  the  results  of  my  inves- 
tigation into  a  letter,  which  I  now  take  the  liberty  of  addressing  to 
you.  This  I  do  with  the  assurance,  that  the  views  I  have 
presented  accord,  in  general,  with  your  own,  and  with  the  hope, 
that  it  may  be  of  interest  to  others  besides  ourselves,  and  of 
service  to  our  common  country. 

This  subject  is  important  in  more  than  one  point  of  view. 
Not  only  does  it  come  before  us  as  a  part  of  the  means  of  putting 
down  the  rebellion  and  punishing  the  rebels,  but  it  is  important 
in  reference  to  the  immense  national  debt  which  we  shall  have 
to  pay.  This  debt  will,  in  all  its  items,  amount  to  more  than  a 
thousand  millions  of  dollars.  By  the  last  census  I  see,  that  the 
"actual  value"  of  property  in  the  rebel  states  is,  $4,708,252,215 — 


sa}^  three  billions,  exclusive  of  slavery — including  Western 
Virginia,  but  not  including  any  portions  of  Delaware,  Maryland, 
Kentucky,  Tennessee,  or  Missouri.  A  jDortion  of  this  Western 
Virginia  should  not,  of  course,  be  included  in  any  confiscation ; 
but  there  is  more  than  property  enough  in  the  other  states,  viz., 
Delaware,  Maryland,  Kentucky,  Tennessee,  and  Missouri,  which 
is  held  by  rebels,  and  is  liable  to  confiscation,  to  make  up  for  all 
that  is  held  by  loyal  men  in  the  States  of  Virginia,  North 
Carolina,  South  Carolina,  Florida,  Ceorgia,  Alabama,  Mississippi, 
Louisiana,  Texas,  and  Arkansas,  which  I  have  included  in  the 
above  amount.  If,  now,  this  property  may  be  confiscated  and 
sold  to  pay  the  debt  of  this  war,  it  will  go  a  good  way,  at  least, 
towards  paying  the  whole  of  it.  If  it  may  not  be  confiscated  for 
anything  more  than  the  life  of  its  present  owners,  but  very  little 
can  ever  be  realized  out  of  it,  and  this  enormous  debt  must  fall 
with  crushing  weight  upon  the  wealth  and  the  industry  of  our 
country. 

The  doubt  concerning  the  right  to  confiscate  the  property  of 
those  who  are  now  in  rebellion,  to  the  use  of  the  United  States, 
arises  chiefly  from  words  which  occur  in  Art.  3,  Sec.  3,  of  the 
Constitution,  thus:  ''''hut  no  attainder  of  treason  shall  work  corrup- 
tion of  bloody  or  forfeiture^  except  during  the  life  of  the  person  attainted.''^ 
These  words  seem  to  be  quite  explicit.  They  are,  however,  a  little 
peculiar,  and  such  as  that  their  meaning  is  not  very  obvious 
without  some  explanation.  The  most  natural  and  proper  recourse 
in  such  cases  is  to  the  decisions  of  United  States  Courts,  and 
failing  there,  to  the  debates  in  the  Convention  that  framed  the 
Constitution,  or  the  cotemporaneous  explanations  given  by 
those  who  introduced  the  language  into  the  Constitution. 

But  there  have  been  no  decisions  in  the  United  States  courts, 
or  in  any  others,  so  far  as  I  can  find.  The  act  of  Congress  passed 
April  30th,  1790,  providing  for  the  punishment  of  treason,  does 
not  include  forfeiture  of  property  as  a  part  of  the  punishment; 
and  all  the  cases  in  our  courts  have  been  under  that  statute  in 
such  a  way,  as  not  to  raise  the  question  of  the  meaning  of  this 
clause  of  the  Constitution  for  adjudication. 

On  referring  to  the  records  of  the  debates,  published  by  Elliot, 
as  well  as  to  "  The  Madison  Papers^^''  it  does  not  appear  that  these 
words  of  the  Constitution  were  discussed  at  all.  It  is  true,  that 
Story,  in  his  Commentaries  on  the  Constitution,  says,  in  speaking 


of  these  very  words:  ^^ forfeiture  except  during  the  life  of  the  person 
attainted\^  that  the  clause  was  fully  discussed,  &c.  But  on 
referring  to  the  authorities  which  he  cites,  I  see  that  the  preced- 
ing clause,  defining  treason,  was  fully  discussed,  and  amendments 
proposed — some  of  them  adopted,  others  rejected,  and  the  reasons 
given  for  their  adoption  or  rejection.  But  his  language  is  rather 
loose,  and  it  does  not  appear  that  anything  was  said  as  to  the 
precise  meaning  of  the  words,  '•'' corruption  of  hlood''''  or  ^'■forfeiture 
except  during  the  life  of  the  person  aUai7ited,''^  or  what  was  the 
intention  of  the  framers  of  the  Constitution  in  inserting  them. 
"  The  Federalists^''  also,  is  silent  on  this  precise  point. 

And  so,  too,  on  referring  to  the  reports  of  the  debates  in  Con- 
gress, on  the  passage  of  the  law  of  1790,  already  referred  to,  not  a 
word  appears  to  have  been  said  about  ^^  corruption  of  blood  ^^  or 
^^ forfeiture  ^^  as  they  occur  in  the  Constitution,  limiting  the  effects 
of  attainder ;  although  there  were  in  that  Congress,  men  who  had 
taken  a  prominent  part  in  framing  the  Constitution.  The  bill 
appears  to  have  been  perfected  in  the  committee  of  the  Senate, 
and  was  passed  as  reported.  Of  course  we  have  no  means  of 
knowing  what  was  said  in  the  committee. 

Perhaps  this  failure  of  cotemporary  exposition  or  construction, 
as  evidence  of  the  true  sense  in  which  the  Constitution,  in 
this  particular  case,  is  to  be  understood,  is  the  less  to  be  regret- 
ted, from  the  fact,  that  the  Supreme  Court  has  laid  down  the 
rule  on  this  point,  ( Wheaton,  vol.  9,  p.  209),  that  the  framers  of 
the  Constitution  "  must  be  understood  to  have  employed  words 
in  their  natural  sense,  and  to  have  intended  what  they  said,*  *  * 
that  there  is  no  other  rule,  than  to  consider  the  language  of  the 
Instrument,  *  *  *  *  in  connection  with  the  purpose  for  which 
it  was  used." 

In  the  absence,  therefore,  of  all  authoritative  construction  by 
the  courts,  and  of  testimony  as  to  the  meaning  and  intention  of 
the  framers  of  the  Constitution,  we  are  left  under  this  rule  of  the 
court,  to  general  reasoning  upon  the  natural  meaning  of  the 
words  used,  and  the  light  which  historic  circumstances  may 
throw  upon  them. 

The  Constitution,  Art.  1,  Sec.  9,  says  :  "  No  Bill  of  Attainder 
or  ex  post  facto  law,  shall  be  passed.''^ 

Attainder,  in  itself,  is  considered  the  blemish  or  disgrace 
which  follows  the  conviction  of  treason,  or  other  high  crime. 


6 

"Its  consequences  (says  Blackstone,  vol.  IV,  j^-  381,)  are  corruption 
of  blood  and  forfeiture." 

The  forfeiture  or  loss  of  civil  rights  may  be  resolved  into 
three  elements : 

(1.)  The  right  to  hold  any  ofGce  or  trust  under  the  Govern- 
ment, together  with  the  right  to  vote  at  any  election  for  the 
choice  of  any  officers. 

(2.)  The  right  to  hold  property,  especially  real  estate,  as  that 
right  in  England  and  in  this  country,  when  the  Constitution  was 
adopted,  was  not  allowed  to  any  foreigner  or  alien. 

(3.)  The  right  to  protection,  in  case  one  should  leave  the 
country,  for  the  purpose  of  traveling  or  residing  in  foreign  lands. 

Thus,  the  forfeiture  of  attainder  was  a  loss  of  all  civil  rights  — 
all  the  rights  and  privileges  of  citizenship. 

The  expression,  "  corruption  of  blood,"  grew  out  of  usages 
connected  with  the  feudal  tenures.  The  fief  was  an  estate  in  lands 
held  from  a  superior  lord,  on  condition  of  fealty,  (fidelity),  hom- 
age, and  military  service.  It  is  highly  probable,  that  these  fiefs 
or  estates  were  at  first  granted  as  personal  favors  and  only  for 
life.  But  in  the  troublous  and  confused  times  of  the  early  set- 
tlement of  the  kingdoms  of  Europe,  nothing  was  more  natural, 
than  that  the  son  of  the  vassal  should  succeed  to  the  fief  or  estate 
of  his  father,  if  he  was  woi'thy  of  it,  and  capable  of  performing 
its  duties.  In  this  way,  a  usage  grew  up,  by  which  the  inheri- 
tance of  the  fief,  with  its  titles  and  duties,  came  to  have  the  force 
of  law,  and  very  generally  prevailed,  if  it  did  not  become  quite 
universal.  If,  however,  the  vassal  at  any  time  failed  of  his 
duties,  and  came  short  in  his  fidelity ;  still  more,  if  he  should 
array  himself  against  his  lord,  he,  of  course,  forfeited  all  that  he 
had  received,  not  only  his  own  estate  and  rights  in  the  fief, 
but  the  rights  of  his  heirs,  whatever  they  might  be,  to  succeed 
by  inheritance  to  what  he  had  lost.  Under  the  Norman  kings 
in  England,  says  Hallam,  ("View  of  Europe,"  chap.  II,  p.  11), 
these  "  absolute  forfeitures  came  to  prevail,  and  a  new  doctrine 
was  introduced,  '  the  coyruption  of  hlood,^  by  which  the  heir  was 
efiectually  excluded  from  claiming  his  title  at  any  distance  of 
time  through  an  attainted  ancestor,"  This,  of  course,  reduced 
them  to  the  condition  of  serfs  or  slaves,  with  no  rights  which  the 
more  privileged  classes  were  bound  to  respect.  The  idea  was, 
that  treason  implied  a  baseness  of  "  blood,"  or  of  nature,  which 


rendered  the  wliole  line  of  descent  from  the  person  attainted, 
unworthy  of  personal  confidence  or  public  trust  —  too  base,  in 
fact,  to  be  anything  but  slaves. 

*In  England,  attainder  might  befall  a  man  in  either  of  four 
ways : 

(1.)  By  confession  and  abjuration  of  the  realm. 

(2.)  By  verdict  of  jury,  founded  on  proof  of  guilt. 

(3.)  By  outlawry,  where  the  guilty  person  either  fled  or  hid 
himself  so  as  to  be  out  of  the  reach  of  legal  process. 

(4.)  By  bill  of  attainder.  This  was  a  bill  passed  in  Parliament 
in  the  same  manner  as  any  other  law.  It  named  the  person  or 
persons  to  be  attainted,  declared  them  guilty,  and  pronounced 
sentence.  It  might,  like  any  other  bill,  be  passed  by  a  bare  ma- 
jority, and  for  the  most  part,  the  accused  was  attainted  for  an 
act  which  was  no  crime,  and  against  which  there  was  no  law 
when  the  act  was  performed,  or  the  words  uttered,  for  which  he 
was  condemned. 

Nor  was  this  all.  It  was  not  an  uncommon  practice  to  pass 
bills  of  attainder  against  a  man  after  he  was  dead.  These  bills 
of  attainder  were  a  most  powerful  engine  of  tyranny  and  injus- 
tice. They  might  be  passed  against  any  political  opponent  who 
might  happen  to  be  in  a  minority  ;  or  against  any  man,  after  he 
was  dead,  whose  property  the  King  or  Parliament  might  wish 
to  secure.  This  most  odious  engine  of  despotism  has  been  abo- 
lished in  this  country.  Here,  "  no  hills  of  attamder  may  be  passed" 
But  attainder  itself —  that  is,  loss  of  political  and  civil  rights  —  is 
not  abolished  in  this  country.  It  may  be  inflicted  as  a  penalty 
for  treason  or  rebellion,  or  other  crime,  only  it  must  be  by  trial 
and  conviction ;  it  cannot  be  by  bill  or  mere  act  of  Congress. 

The  consequences  of  attainder,  however,  were  not  generally, 
if  ever,  expressly  declared  and  pronounced  to  be  the  punishment. 
They  were  consequences,  which  the  sentence,  pronounced  by  the 
court,  or  enacted  in  the  bill,  was  said  to  ^^work"  or  draw  after 
it.  J  List  as  with  us  — ■  a  man  convicted  of  larceny,  for  example, 
and  sentenced  to  the  State  Prison  for  a  term  of  years.  Nothing 
is  said  in  the  sentence  of  the  court  about  loss  of  the  society  of  his 
family  —  the  control  and  management  of  his  private  affairs — the 
right  to  vote  and  be  elected  to  ofl&ce,  &c. ;  and  yet,  all  these  are 

*0f  course,  this  idea  was  modified  as  the  feudal  tenures  passed  away,  aud  the 
rights  of  the  natural  born  subjects  begau  to  be  recognized  by  the  EngUsh  laws. 


8 

involved  in  the  sentence.  The  sentence,  by  its  very  execution, 
*'  ivories  "  these  consequences. 

Now  let  us  look  at  the  other  clause  of  the  Constitution  in 
which  attainder  is  spoken  of.  [Art.  Ill,  §  3.]  Here  '■^treason'''' 
is  defined,  and  it  is  declared,  that  "  no  person  shall  be  convicted 
of  treason  except  by  the  testimony  of  two  or  more  witnesses 
to  the  same  overt  act,  or  on  confession  in  open  court." 

To  he  jnmished  for  treason,  therefore,  in  this  country,  one  must 
be  convicted,  either  by  proof,  or  "confession  in  open  court."  It 
cannot  be  done  by,  1st,  Outlawry ;  or,  2d,  By  bill ;  as  under  the 
English  law. 

It  must  be  remembered,  however,  that  it  is  the  punishment  for 
treason  that  we  are  speaking  of,  and  to  which  these  restrictions 
of  the  Constitution  apply,  and  not  the  mere  arrest  of  one  sus- 
pected of  treason.  There  is  no  restriction  imposed  upon  the 
power  or  right  to  arrest  and  detain  any  persons  who  are  guilty 
of  treason,  or  are  suspected  on  sufficient  grounds,  anymore  than 
in  the  case  of  other  oifences. 

The  next  clause  of  the  Constitution  goes  on  to  say,  "  Congress 
shall  have  power  to  declare  the  punishment  of  treason,  but  no 
attainder  of  treason  shall  work  corruption  of  blood,  or  forfei- 
ture, except  during  the  life  of  the  person  attainted." 

It  seems  not  unlikely,  that  the  framers  of  the  Constitution,  in 
accordance  with  the  general  policy  of  our  Government,  meant  in 
this  clause  to  declare,  that  the  punishment  for  treason,  whatever 
that  might  be,  should  not  involve  or  "  work  "  evil  consequences 
to  the  guilty,  any  further  than  they  might,  1st,  be  expressly 
declared  in  the  words  of  the  sentence  passed  upon  him  by  the 
Court ;  or,  2d,  necessarily  involved  in  the  execution  of  that  sen- 
tence. These  consequences,  as  we  have  seen,  were  of  two  classes — 
"  forfeiture  of  rights,"  and  "  corruption  of  blood."  One  of  which, 
viz.,  corruption  of  blood,  is  wholly  abolished  by  our  Constitution. 

Under  the  English  law,  the  traitor  was  put  to  death  with 
circumstances  of  unusual  cruelty ;  his  bowels  were  taken  out, 
while  he  was  alive,  and  burnt  in  his  presence,  with  other 
elements  of  barbarous  ferocity  which  need  not  be  recalled  here. 
And  so  far  were  these  notions  of  corruption  of  blood  carried,  that 
the  children  must  lose  forever  their  right  of  inheritance  through 
the  guilty  man,  who  was  regarded  as  a  broken  or  lost  link  in  the 
chain  that  connected  them  with  the  past. 


9 

It  will,  doubtless,  go  far  to  account  for  this  barbarity,  to  con- 
sider that  treason  was  not  regarded,  under  hereditary  monarchs, 
as  chiefly  or  mainly,  a  crime  against  the  people  or  the  public 
welfare,  but  as  a  crime  against  the  King.  Not  only  resistance  to 
th«  laws  of  the  land,  or  the  King's  laws,  but  any  word  or  act  that 
might  be  regarded  as  in  any  way  disrespectful  to  him,  tending  to 
bring  him  into  disrespect  or  contempt,  or  disapproving  of  any  of 
his  acts  or  measures,  might  be  made  into  "  constructive  treason^''  at 
least,  and  punished  as  such  by  bill  of  attainder,  if  not  by 
conviction  in  open  court. 

But  in  this  country,  we  take  a  different  view  of  the  matter. 
Treason  has  been  limited  to  "  overt  acts "  of  war  against  the 
legitimate  authority  of  the  United  States.  The  punishment  for 
treason  has  also  been  modified,  and  stripped  of  all  unnecessary 
cruelty.  We  have  abolished  "  corruption  of  blood  "  altogether, 
and  adopted  the  humane  doctrine,  that  no  man  shall  be  made  to 
suffer  unnecessarily  for  the  crimes  of  another.  And  in  the  prose- 
cution of  this  doctrine,  we  have  also  placed  some  restrictions 
upon  the  other  consequences  of  attainder  —  the  forfeitures.  With 
us,  attainder  shall  "  work  no  forfeiture,  except  during  the  life  of 
the  person  attainted."     What  is  the  import  of  this  restriction  ? 

I  think  that  this  language  is  used  all  along  with  reference  to 
English  law  and  usages,  and  was  designed  to  abolish  some  things 
which  were  practiced  under  that  law.  Does  it  then  prohibit  the 
absolute  confiscation  of  the  property  of  the  convicted  traitor,  or 
an  alienation  of  it,  not  during  his  lifetime  only,  but  from  him 
and  his  heirs,  forever  ?     Many  think  so,  but  I  do  not. 

(1.)  In  the  first  place,  the  expression  "  work  -^  *  *  forfeitures^'' 
shows  clearly,  that  the  framers  of  the  Constitution  were  not,  in 
this  case,  speaking  of  what  might  be  included  in  the  punishment 
as  a  part  of  it,  but  only  of  certain  consequences  which  it  might 
"  workP  although  not  necessarily  involved  in  it.  In  this  view 
of  it,  the  Constitution  would  not  prohibit  the  confiscation  of  pro- 
perty from  being  a  part,  of  "  the  punishment,"  which  Congress 
has  the  "  power  to  declare  "  against  the  traitor.  The  Constitu- 
tion provides,  that  i/ confiscation  is  to  ensue,  it  must  be  as  a  part 
of  the  punishment  included  and  expressly  declared  in  the  sen- 
tence of  the  court,  by  which  he  was  convicted ;  it  could  not 
be  permitted  to  follow,  as  a  consequence  of  that  punishment  or 
sentence. 

2 


10 

But,  is  the  property  thus  alienated,  gone  forever  from  his  heirs 
and  his  family,  by  virtue  of  the  forfeiture  ?  In  England,  they 
have  two  grades  of  treason  :  high  and  petit  treason.  But  in  this 
country,  we  have  no  petit  treason;  and  the  only  thing  that, 
under  our  Constitution,  we  can  recognize  as  treason  against  the 
United  States,  is  what  they  called  high  treason.  Under  the 
English  law,  in  all  cases  of  high  treason,  the  alienation  was 
absolute. 

(2.)  The  word  "forfeiture,"  which  is  used  in  this  connection, 
has  a  significant  bearing  upon  the  point  before  us.  It  is  used  in 
two  senses  :  one  concrete,  and  the  other  abstract.  As  a  concrete 
term,  "it  denotes,"  says  Webster,  " that  which  is  forfeited,"  and 
so  Wo7'cester,  "  the  thing  forfeited."  But  as  an  abstract  term, 
"it  conveys,"  says  Webster,  "  the  act  of  forfeiting ;  the  losing  of 
some  right,  privilege,  *  *  *  by  an  offence  or  crime.  *  *  *  In 
regard  to  property,  the  forfeiture  is  of  the  right  to  possess,  *  *  * 
but  not  generally  the  actual  possession,  which  is  to  be  transfer- 
red by  some  subsequent  process."  So  Wo7'cester,  "  ( in  law ),  the 
act  of  forfeiting :  a  loss  of  property,  right,  or  office,  as  a  punish- 
ment for  some  illegal  act  or  negligence."  Hence,  the  word 
denotes,  in  this  connection,  an  instantaneous  act,  and  not  a  con- 
tinuous condition.  In  the  other  sense  of  the  word  "forfeiture," 
meaning  thereby,  the  thing  that  is  forfeited — to  "work  forfei- 
ture" would  be  ungrammatical " ;  it  should  be,  "work  a  forfeiture," 
and  in  that  case  the  language  could  be  understood  to  mean  only 
to  bestow  labor  upon  it,  as  one  does  upon  his  farm ;  a  thing  which 
"  attainder  "  could  not  do. 

If  we  pass  from  the  "  natural  sense  "  of  the  word  "  forfeiture," 
to  consider  the  nature  of  the  operation,  we  shall  find  the  argu- 
ment equally  clear  and  strong,  as  I  think,  in  favor  of  the  view 
which  I  am  presenting.  Considered  in  this  light,  forfeiture  im- 
plies not  the  punishment  of  the  crime,  but  some  of  the  conse- 
quences of  it.  For  example,  take  the  case  of  smuggling — the 
goods  smuggled  are  forfeited ;  but  the  smuggler  is  liable  to  pun- 
ishment besides,  and  totally  independent  of  the  value  of  what 
he  may  have  lost  by  his  forfeiture.  In  some  of  the  states,  the 
man  who  sells  liquors  without  due  license,  not  only  forfeits  the 
liquors,  to  be  sold  again  by  public  authority  or  to  be  destroyed, 
but  he  is  also  liable  to  punishment  by  fine  or  imprisonment,  or 
both,  besides  the  loss  of  his  property,  (the  liquor),  by  forfeiture. 


11 

So,  again,  a  forger  may  have  many  valuable  tools,  but  the  for- 
feiture of  them  is  considered,  in  the  eye  of  the  law,  as  no  part  of 
the  punishment  of  his  crime. 

We  must  carefully  note,  that  it  was  not  the  property  merely 
of  the  person  attainted  that  he  lost,  but  his  right  to  property. 
What  he  had  went  with  his  right  to  hold  it,  of  course.  Thus, 
Wooddesso7i,  (Lect.,  vol.  II.  p.  259).  "If  a  son  be  attainted  of 
treason  during  the  life  of  his  father,  donee  in  tail,  and  die,  hav- 
ing issue,  and  then  the  father  dies,  the  estate  shall  descend  to  the 
grandchildren  secundum  formara  doni,  notwithstanding  the 
attainder;  but  if.  is  otherwise  in  case  of  a  fee  simj^k.^^  They  took 
the  estate  if  it  was  entailed  to  them,  not  in  consequence  of  his 
having  had  any  estate  in  it,  but  because  it  was  given  to  them  by 
an  ancestor  further  back  than  the  attainted  person,  and  was  theirs 
according  to  the  form  of  the  gift.  But  if  the  estate  was  held  in 
fee  simple — that  is,  if  it  were  absolutely  his  own,  no  other  per- 
son at  that  time  having  any  estate  in  it  or  right  to  it,  as 
wife  by  dower,  child  by  inheritance,  the  case  was  otherwise, 
says  WooDDESSON,  that  is,  the  forfeiture  was  absolute,  and  his 
heirs  could  not  come  into  possession  of  it  after  his  death.  So 
also  Blacksto-ne,  (vol.  IV,  p.  885).  "In  the  case  of  petit  treason, 
the  offender  forfeited  all  his  personality  absolutely,  and  his  lands 
in  fee  simple  to  the  Crown  for  a  short  time — a  year  and  a  day, 
and  after  that,  '  by  way  of  escheat  to  the  lord.'  But  it  was  gone 
from  the  offender  and  his  heirs  forever.  In  case  of  high  treason, 
however,  the  guilty  party  '  forfeited  to  the  King  all  his  lands, 
&c.,  whether  fee  simple  or  fee  tail,  to  be  forever  afterwards  vested 
in  the  Crown.'  "     P.  381. 

I  am  well  aware  that  the  English  laws  concerning  treason, 
attainder,  &c.,  have  been  greatly  modified  since  the  adoption  of 
our  Constitution,  and  even  before  its  adoption,  as  for  example. 
11  and  12  W.  Ill ;  7  of  Anne.  By  the  Statute  54  of  Geo.  Ill, 
passed  some  twenty-five  years  after  the  adoption  of  our  Constitu- 
tion,  the  English  have  taken  very  much  the  same  grounds  as 
we  had  done  a  quarter  of  a  century  before,  in  regard  to  the  pun- 
ishment of  traitors.  Still,  however,  in  citing  English  law  as 
explanatory  of  our  Constitution,  we  must  take  the  laws  as  they 
were  at  the  time  when  our  Constitution  was  framed,  and  not  as 
they  may  have  been  made  since  that  time. 


12 

We  must  remember,  that  in  England,  a  large  part  of  the  land 
was  held  by  some  form  of  entail,  so  that  in  reality  the  traitor, 
for  the  most  part,  would  have  only  a  life  estate  in  it,  and  this, 
therefore,  was  all  that  he  could  lose  by  forfeiture.  The  property 
entailed  would  go  to  the  heirs,  not,  however,  as  his  heirs  or 
through  him,  but  as  it  were  over  him  and  from  some  ancestor  who 
had  entailed  it,  and,  in  the  language  of  Wooddesson,  "  according  to 
the  form  of  the  giftP  His  crime  did  not  affect  their  rights  in  this 
case,  since  the  property  came  to  them  independently  of  the  fact 
that  he  had  ever  had  an  estate  or  interest  in  it. 

Hence  no  argument  can  be  drawn  from  the  fact,  that  in  some 
cases  lands  in  which  the  criminal  had  an  estate  during  his  life, 
did,  after  his  death,  come  to  his  children.  The  lands  came  to  them, 
if  at  all,  because  they  were  entailed,  or  were  estates  in  gavel- 
kind— that  is,  they  were  either  entailed  to  some  particular  heirs 
or  line .  of  heirs — or  to  all  heirs  by  what  was  called  gavel- 
kind. But  if  the  estates  were  held  in  fee  simple,  the  forfeiture 
was  absolute.  Under  the  English  law,  a  man  forfeited  what  he 
had  and  nothing  more — his  life  estate,  if  that  was  all  he  had,  and 
the  entire  property  if  he  held  in  fee  simple,  or  was  absolute  owner. 
But  the  estate  or  interest  which  the  criminal  had  in  the  lands  was 
never  restored.  It  could  not  be  restored,  for  it  was  either  a  life 
estate,  or  an  estate  in  fee,  and  the  man  to  whom  it  had  belonged, 
being  dead,  it  could  not  have  been  restored  to  him.  He  was  be- 
yond the  possession  and  use  of  it.  His  interest  in  it  and  right  to 
it  alike  had  terminated  by  that  act  of  Providence  which  removed 
him  from  among  his  fellow  men.  Hence,  the  only  forfeiture 
which,  in  the  nature  of  things,  can,  by  an}"-  possibility,  extend 
beyond  the  life  of  the  person  attainted,  is  the  forfeiture  of  rights 
implied  in  the  corruption  of  blood.  But  in  this  country,  a  man's 
rights  are  born  with  him,  and  they  die  with  him.  His  children 
have  the  right  to  inherit  what  he  leaves  intestate.  But  if  he  leaves 
nothing  which  is  legally  his  own,  they  have  no  right  to  what  he 
had  previously  owned  and  lost,  whether  by  gift,  the  misfortunes 
of  business,  the  waste  of  prodigality,  or  the  fines  and  forfeitures 
consequent  upon  his  crimes.  To  that  extent,  his  children  must 
suffer  for  his  acts. 

I  have  one  suggestion  more  to  make,  in  regard  to  the  nature 
of  a  forfeiture.     It  is  not  a  continuous  act,  so  to  call  it.     It  is  an 


13 

act  wliicb,  like  a  sale,  is  made  once  and  at  a  definite  moment, 
and  though  the  article  which  changes  owners  by  the  sale,  re- 
mains sold,  yet  the  sale  itself  cannot  be  said  to  remain.  So  a 
forfeiture :  it  takes  place  at  a  given  time  and  the  article  remains 
forfeited  forever,  and  forever  alienated  from  him  who  owned  it  be- 
fore, and  the  forfeiture  cannot  be  said  to  remain,  and  to  keep  taking 
place.  Hence  a  forfeiture,  after  the  life  of  the  person  attainted 
had  come  to  an  end  ( and  though  it  might  be  a  forfeiture  for  his 
crime),  could  not  be  a  forfeiture  of  anything  that  was  his.  It 
would  not  be  his  forfeiture  at  all.  It  could  not  be  said  to  be  a 
forfeiture  of  his  property  or  rights  ;  tliat  must  take  place  during 
his  life,  if  at  all.  And  hence  the  Constitution,  in  prohibiting  for- 
feitures, except  during  the  life  of  the  person  attainted,  could  not 
be  prohibiting  or  limiting  a  forfeiture  of  the  estate  of  the  traitor, 
but  only  declares  that  the  forfeiture  must  take  place  during  his 
life,  and  must  not  be  visited  upon  the  property  of  his  children, 
after  it  had  become  theirs.  What  gives  emphasis  to  this  view,  is 
the  fact,  that  in  England,  at  the  time  of  the  adoption  of  the  Consti- 
tution, a  man  might  be  attainted  after  his  death.  In  that  case,  of 
course,  all  the  penalties  and  forfeitures  would  fall  upon  his  chil- 
dren. His  attainder  would  not  only  work  a  corruption  of  his 
blood,  but  it  would  be  a  forfeiture  of  their  property,  which  would 
be,  of  course,  therefore,  a  forfeiture  after  the  life,  or  rather  after 
the  death  of  the  person  attainted.  But  in  this  country,  and  un- 
der our  Constitution,  the  attainder  works  no  corruption  of  blood ; 
it  works  no  forfeiture  after  the  death  of  the  guilty  person.  The 
punishment  must  fall  upon  him  and  his  property  ivhile  it  is  his  ; 
it  cannot  fall  upon  it,  after  it  has  become  theirs.  Suppose  we 
now  insert  the  word  "  sale  "  and  see  how  the  Constitution  reads : 
"  No  attainder  of  treason  shall  work  a  sale,  except  during  the  life, 
&c."  Would  anybody  suppose  for  a  moment,  that  the  language 
was  designed  for  anything  more  than  to  protect  the  property  of 
the  heirs?  Would  anybody  suppose,  that  the  property  sold  be- 
fore the  death  of  the  traitor  was  to  be  restored  to  his  heirs  after 
his  death,  by  virtue  of  these  words  of  the  Constitution  ?  Clearly 
not.  The  matter  is  too  plain  to  admit  of  a  doubt.  Forfeiture  is 
a  conveyance  ;  it  is  one  mode  of  changing  title.  It  is  so  reckoned 
by  Blackstone,  and  all  the  elementary  writers,  whose  works  are 
within  my  reach.  But  as  a  mode  of  conveyance,  it  must  be  an 
instant  act.     One  cannot  be  always  ov  permanently  acquiring, 


14 

or  always  losing,  the  same  title.  Like  sale,  escheat,  &c.,  forfeiture 
must  be  instantaneous  and  completed  at  the  time. 

It  may  be  objected  to  this  view  of  the  meaning  of  the  clause 
of  the  Constitution  under  consideration,  that  it  is  makes  the 
phrases  "corruption  of  blood,"  and  "forfeiture,  except  during 
the  life  of  the  person  attainted  "  to  mean  precisely  the  same  thing, 
and  thus  a  tautology,  which  it  is  not  to  be  presumed  will  exist 
in  the  language  of  that  Instrument.  There  would  certainly  be 
great  force  in  the  objection  if  it  were  well  founded. 

But  the  phrases  are  not  synonymous.  There  may  be  corrup- 
tion of  blood,  without  forfeiture  beyond  the  life  of  the  person 
attainted,  and  forfeiture,  without  corruption  of  blood.  In  the 
former  case,  the  children  would  have,  the  right  to  acquire  and  hold 
property,  to  vote,  &c.,  but  they  could  not  inherit  property  from 
a  grandfather  through  their  father  who  had  been  attainted.  In 
the  latter  case,  the  children  might  be  involved  in  the  attainder  so 
far  as  the  loss  of  their  father's  property  is  concerned,  while  col- 
lateral heirs,  as  children  and  descendants  of  a  brother  of  the 
attainted  traitor,  might  inherit  property  from  their  common 
ancestors  —  say,  their  grandfather  —  even  when  in  order  to  do  so, 
it  would  be  necessary  to  trace  the  title  through  the  attainted  per- 
son. The  attainder,  in  this  case,  would  affect  his  children,  but 
not  his  collateral  heirs. 

There  is  one  other  consideration  that  seems  to  confirm  this 
view  of  the  Constitution.  It  will  not  be  supposed  for  a  moment, 
that  the  framers  of  the  Constitution  intended  to  extend  to  rebels 
and  traitors  any  immunity  beyond  what  might  be  extended  to 
other  criminals.  The  idea  is  absurd.  But  in  other  cases,  we 
punish  by  forfeitures  and  fines  as  well  as  imprisonment,  &c.  The 
court  may  sentence  a  man  to  a  fine  for  a  definite  amount.  This 
fine  may  take  all  his  property,  personal  as  well  as  real,  and  yet 
nobody  ever  supposed,  that  that  was  not  an  alienation  forever, 
or  that  the  property  must  be  restored  to  the  heirs  of  the  guilty  man 
after  his  death.  The  transfer  is  absolute,  and  the  title  acquired 
in  this  way  is  as  good  for  the  holder  of  such  property  as  any 
that  is  known  to  our  laws. 

Hence,  there  are  cases  constantly  occurring,  in  which  punish- 
ment for  crimes  does  work  alienation  of  property,  extending 
beyond  the  life  of  the  person  convicted  and  disgraced  by  the 
crime.     Why  should  an  exception  be  made  in  favor  of  traitors 


15 

and  rebels?  Is  their  crime  less  heinous  than  forgery  or  horse- 
stealing? Did  the  fathers  of  our  country  intend  to  deal  tenderly 
with  them ;  to  make  of  treason  a  light  thing ;  to  hold  out  induce- 
ments and  temptations  to  it,  by  shielding  those,  who  might 
endanger  the  nation's  welfare  and  imbue  their  hands  in  the  blood 
of  their  fellow  citizens,  from  the  penalties  that  might  fall  upon 
other  and  lighter  offences  ?  The  question  needs  no  answer.  And 
yet  this  is  the  result  of  maintaining,  that  the  Constitution  prohibits 
the  confiscation  of  the  property  of  rebels  for  a  period  extending 
beyond  their  natural  lives. 

Consider,  now,  the  absurdity  of  taking  the  real  estate  of  rebels, 
in  part  punishment  of  treason,  if  we  have  no  right  to  alienate  it 
beyond  the  period  of  their  natural  lives. 

The  penalty  for  treason  being  generally  the  death  of  the  traitor, 
the  execution  of  the  sentence  of  the  law  upon  his  body  would  be 
likely  to  follow  very  soon  after  the  sentence  itself  was  passed 
upon  him.  If,  now,  we  can  forfeit  his  real  estate  only  for  his 
lifetime,  forfeiture  really  amounts  to  nothing  —  for  it  could 
extend  only  from  the  time  of  the  sentence  to  the  execution.  It 
would  be  no  punishment  at  all — no  damage  to  his  heirs,  and  no 
benefit  to  the  community  which  he  had  so  deeply  wronged. 
We  certainly  cannot  suppose,  that  the  framers  of  our  Constitu- 
tion, among  whom  were  some  of  the  best  scholars  and  the  most 
learned  lawyers  of  the  age,  could  have  intended  any  such  sense- 
less absurdity  as  this.  Nor  is  this  all,  the  clause  of  the  Consti- 
tution in  question  makes  no  distinction  between  personal  and  real 
estate.  The  words  are  ^^  or  forfeiture  except,''^  Sac,  and  therefore 
the  restriction,  whatever  it  be,  applies  as  well,  and  with  the  same 
binding  force,  to  personal  effects,  mere  chattels  and  household 
goods,  many  of  which  perish  in  the  using,  as  to  real  estate. 

I  pass  to  another  very  important  consideration.  I  have  several 
times  alluded  to  the  general  policy  of  our  Government  to  make 
every  one  responsible  for  his  own  acts  and  not  to  visit  the  sins 
of  the  father  upon  the  children.  And  it  is  worth  while  to  con- 
sider, how  this  interpretation  of  the  Constitution  harmonizes  with 
that  idea,  and  secures  its  complete  realization  in  regard  to  the 
subject  of  treason  at  least.  In  England  a  man's  treason  might 
be  visited  on  his  children  in  either  of  two  ways,  as  we  have  seen, 
namely : 


16 

(1.)  By  corruption  of  blood,  in  consequence  of  which  they 
could  inherit  nothing  from  him,  or  even  through  him  from  their 
ancestors. 

(2.)  By  bills  of  attainder  passed  after  the  death  of  the  offender^ 
and  when  his  property  had  passed  into  the  hands  of  his  heirs, 
who  might  be  perfectly  innocent  of  his  crime. 

I  have  already  spoken  of  the  English  law  as  allowing  attain- 
der after  the  offender  himself  was  dead.  Now,  nothing  seems 
more  natural,  than  to  suppose  the  framers  of  our  Constitution 
had  these  post  mortem,  visitations  upon  the  posterity  of  the 
offender  in  mind,  when  they  added  the  words  in  our  Constitu- 
tion :  "  or  forfeiture  except  during  the  life  of  the  person  attainted^'' 
Fortunately,  such  a  thing  as  attainder  after  the  death  of  the 
offender  is  entirely  unknown  in  practice  in  our  country.  And 
it  does  not  appear  to  have  occurred,  very  generally,  at  least,  to 
the  minds  of  our  people,  that  that  English  practice  could  have 
had  anything  to  do  with  the  insertion  of  this  limitation  to  for- 
feiture in  our  Constitution.  But,  at  the  time  of  the  Revolution, 
such  cases  were  of  comparatively  recent  occurrence.  "  Many 
such  attainders,"  says  Woodesson,  l(Lec.,  Vol.  ii,  p.  623,)  "have 
been  made."  And  a  recurrence  to  English  history  shows,  that  it 
had  been  a  very  frequent  resort  of  the  Crown,  not  only  for  the 
sake  of  punishing  offenders,  but  as  a  means  of  supplying  the 
royal  exchequer,  and  of  providing  for  the  reward  and  ennoble- 
ment of  a  favorite.  In  fact,  it  was  part  and  parcel  of  the  policy, 
of  which  bills  of  attainder  were  another  part,  for  making  the  power 
of  the  monarchy  complete,  and  so  breaking  down  the  rights  of 
the  people,  as  to  make  them  completely  and  helplessly  submissive 
to  those  in  authority. 

Of  the  nature  and  necessity  of  this,  as  a  principle  of  feudal 
tenure  and  monarchical  institutions,  it  is  not  necessary  to  speak  at 
length.  There  the  landed  property  was  for  the  most  part  held 
in  large  estates,  by  feudal  tenures,  and  is  a  part  of  the  policy  of 
the  kingdom.  If  a  baron  should  turn  traitor  and  die  on  the 
battle-field  in  the  act  of  committing  his  treason,  or  if  he  should 
flee  the  country  and  died  abroad,  there  would  be  no  way  for 
the  King  to  recover  what  was  essential  to  the  integrity  of  the 
realm,  except  some  process  by  which  he  could  be  attainted  after 
his  death.     The  estate  must  be  recovered  to  the  support  of  the 


17 

crown,  and  for  that  purpose,  it  must  be  taken  from  the  heirs  of 
the  traitor,  and  this  was  often  done,  in  order  that  it  might  be 
bestowed  upon  some  favorite — or  at  least  some  loj^al  person,  as  a 
reward  for  services  rendered,  or  as  a  pledge  for  the  future. 

But  in  this  country  we  have  no  such  element  of  national 
policy — no  such  reason  for  disturbing  the  rights  of  the  dead  or 
the  rights  and  possessions  of  the  living.  If  a  rebel  is  to  be  at- 
tainted, it  must  be  while  he  lives ;  if  his  property  is  to  be  for- 
feited for  his  treason,  it  must  be  while  it  is  his,  and  not  after  it 
has  passed,  by  his  death,  into  the  hands  of  his  heirs,  or  belongs 
of  right  to  other  persons. 

Now,  by  the  interpretation  which  I  suggest  for  these  words  of 
the  Constitution,  —  "forfeiture,  except  during  the  life  of  the  per- 
son attainted," — we  secure  this  beneficent  object  of  the  framers 
of  our  institutions,  and  not  without.  For,  on  my  interpretation, 
the  forfeiture  being  regarded  as  a  mere  act  or  mode  of  changing 
the  title  to  property,  effects  the  change  and  has  no  longer  an 
existence.  And,  as  the  Constitution  requires  that  the  act  should 
take  place  while  the  offender  lives,  it  forbids  its  taking  place 
after  he  is  dead.  Otherwise,  what  was  manifestly  the  object  of 
the  framers  of  the  Constitution  and  the  obvious  policy  of  our 
Government,  would  not  be  secured.  Their  intention  would  be 
only  partly  expressed  and  not  effectually  accomplished.  But  on 
my  view,  the  work  is  complete,  the  theory  is  fully  carried  out, 
fully  and  perfectly  expressed  in  all  its  parts  and  proportions. 

I  think  that  we  have  thus  fulfilled  the  two  conditions  of  the 
rule  laid  down  by  the  Supreme  Court  and  already  cited. 

(1.)  The  word  "  forfeiture,"  in  its  most  "  natural  sense,"  denotes 
an  act  of  alienation  or  change  of  title  to  property,  and  in  itself 
no  more  implies  a  return  or  restoration  of  the  property  to  the 
party  from  whom  it  was  lost  by  the  forfeiture,  than  a  sale,  or 
any  other  mode  of  changing  the  title  whatever. 

(2.)  '■'  The  purpose  for  which  the  word  was  used  "  was  mani- 
festly to  protect  the  children  and  heirs  of  the  guilty  man  from  any 
visitation  of  his  sins  upon  them;  from  being  held  in  any  way 
responsible  for  crimes  of  which  they  were  innocent,  in  which  they 
had  no  participation,  and  against  the  commission  of  which  they 
had  no  means  or  power  of  influence. 

The  loss  of  his  property,  it  is  true,  might  be  a  damage  to 
them.     And  so  would  the  loss  of  his  life,  by  the  public  execu- 
3 


18 

tioii  to  which  he  was  to  be  condemned.  And  in  the  same  way, 
his  want  of  capacity  to  take  care  of  his  property,  his  vices  and 
prodigality,  against  which  no  law  could  protect  him,  might 
impoverish  them.  And  this  is  only  a  part  of  the  inevitable 
consequences  of  vice  and  crime  —  a  part,  if  one  chooses  so  to 
regard  it,  of  the  penalty  with  which  not  only  states,  in  their 
sovereign  capacity,  as  administrators  of  their  own  laws  and  sense 
of  justice,  but  society  also  ;  and,  we  may  add,  God,  in  His  Provi- 
dential government  of  the  world;  visits  the  offenders  against  the 
laws  of  righteousness  and  justice.  And  the  prospect  of  such 
consequences,  as  well  as  the  known  certainty  that  they  must  and 
will  inevitably  follow,  are  among  the  most  powerful  motives 
that  can  act  upon  the  human  heart  to  deter  men  from  the  com- 
mission of  crime.  And  in  this  view,  whatever  of  severity  there 
may  seem  to  be  in  such  a  policy,  it  is  a  severity  which  man 
cannot  abolish  if  he  would,  and  a  severity  which  he  should  not 
abolish  if  he  could  —  for  it  is  but  mercy  under  the  sterner  form 
of  severity  —  this  is  mercy.  But  the  other  course  —  the  visiting 
of  the  sins  of  the  father  upon  the  children,  after  he  has  gone  to 
his  final  account,  and  cannot  appear  to  answer  for  and  defend 
himself  before  his  earthly  tribunal,  is  only  unmitigated  and  most 
unnecessary  cruelty. 

And  there  is  something  peculiarly  appropriate  in  the  punish- 
ment of  treason  by  confiscation  of  property.  It  has  been  prac- 
tised, I  believe,  under  every  form  of  municipal  law  and  by  every 
government  that  has  existed.  For  lighter  offences  we  punish  by 
fine  and  imprisonment.  We  take  the  life  of  him  who  has  merely 
taken  the  life  of  a  fellow-man,  with  malicious  intent.  But  for 
the  man  who  has  aimed  at  the  life  of  the  Nation,  not  death  only, 
but  utter  loss  of  all  civil  rights  and  privileges  would  seem  to  be 
the  natural  and  appropriate  manifestiaton  of  the  Nation's  sense 
of  the  enormity  of  the  wrong  that  had  been  attempted  against 
it.  Let  the  people  feel  how  priceless  are  their  blessings  under 
a  benign  government  and  a  righteous  administration  of  laws. 
Let  them  see,  in  the  utter  destitution  and  wretchedness  to  which 
they  are  reduced,  who  wantonly  raise  the  murderous  hand  of 
treason  against  it  —  how  sacred  was  that  life,  the  life  of  the 
Nation,  which  they  had  imperiled — how  worse  than  the  mid- 
night assassin  and  the  highway  robber  is  he,  who  commits  treason 
against  that  government  and  those  laws  which  have  been  for  him 


19 

and  for  the  millions  of  his  fellow-men,  the  source  of  all  their 
earthly  enjoyments. 

It  may  not  add  much  to  the  force  of  my  argument,  to  remark, 
that  the  rebels  with  these  same  words  in  their  Montgomery  con- 
stitution, are  applying  it  in  the  sense  for  which  I  am  arguing. 
They  are  confiscating  the  property  of  loyal  men,  who  may  hap- 
pen to  own  real  estate  within  their  power,  and  as  I  understand, 
with  no  reservation  or  remainder  to  the  heirs.  As  I  said,  the 
argument  from  that  source  may  not  be  worth  much  in  the  esti- 
mation of  loyal  men ;  but  as  this  interpretation  is  to  act  chiefly 
against  them,  they  ought  not  to  complain  of  the  measure  they 
give.  It  is  certainly  no  more  than  fair,  that  they  should  be 
estopped  by  their  own  acts  and  compelled  to  abide  by  the  con- 
struction which  they  have  put  upon  the  law.  It  may,  indeed, 
be  hard  upon  their  children  so  to  confiscate  their  property,  but 
the  payment  of  the  expenses  of  this  war  is  a  hardship  that  must 
fall  upon  somebody ;  it  iliust  take  somebody's  property,  and  if  it 
does  not  take  that  of  the  rebels,  by  confiscation,  it  must  take 
ours  and  that  of  our  children  by  taxation. 

In  a  review  of  the  whole  matter,  therefore,  it  seems  to  me  that 
the  four  following  propositions  are  clearly  proved,  and  express 
the  provisions  of  our  Constitution  on  the  subject  of  attainder  and 
confiscation : 

(1.)  We  have  abolished  bills  of  attainder  altogether,  so  that 
there  can  be  in  this  country  no  attainder  for  treason,  except  "  on 
conviction  by  due  process  of  law." 

(2.)  We  have  stripped  the  execution  of  the  law  upon  the  traitor 
of  all  unnecessary  barbarities,  such  as  the  revolting  scenes  that 
attended  the  execution  of  such  persons  under  the  English  law. 

(3.)  We  have  abolished  "  corruption  of  blood." 

(4.)  And  fourthly,  we  have  provided  that  no  man's  children 
shall  be  punished  for  his  guilt  by  forfeiture  of  their  possessions 
after  his  dealh. 

I  have  taken  no  notice  thus  far  of  the  debates  in  Cona;ress  on 
the  passage  of  the  Conscription  bill,  July  17th,  1862.  I  read 
them  at  the  time  and  have  refreshed  my  recollection  of  them 
since.  The  point  which  I  have  been  discussing  was  not  the  one 
that  was  prominently  before  the  minds  of  those  who  took  part 
in  the  di.scussion.  They  were  considering  confiscation  as  a  war 
measure.     Still,  however,  the  point  was  brought  up  in  the  col- 


20 

loquy  between  Senators  Collamer,  Doolittle  and  Hale  on  the  23d 
of  April,  1862.  Mr.  Hale  took  the  view  which  I  have  been 
endeavoring  to  maintain  in  this  letter.  Senator  Collamer  asks, 
"  Would  it  not  be  strange  if  in  framing  the  Constitution,  those 
who  made  it  should  have  taken  such  pains  to  take  care  of  fee 
tail  estates,  of  which  there  were  bat  few  here,  and  let  the  great 
body  of  estates  in  fee-simple  be  forfeited  ?"  The  simple  answer 
is,  that  they  did  not.  They  were  not  taking  care  of  estates  at  all, 
but  of  the  rights  of  men,  and  they  abolished  the  old  doctrine  of 
corruption  of  blood  and  forfeiture  after  the  death  of  the  traitor, 
in  order  to  protect  the  rights  of  innocent  heirs.  That  is  just  the 
dilference  between  our  policy  and  the  English.  They  legislate  to 
protect  estates ;  we  to  protect  men.  Still,  however,  the  general 
opinion  seemed  to  be  against  the  views  entertained  by  Mr.  Hale. 

I  am  inclined  to  think,  that  the  act  of  1790  has  done  more  than 
the  words  of  the  Constitution  themselves  to  produce  the  general 
impression  with  regard  to  Confiscation.  Something  of  the 
same  kind  of  views  have  been  entertained  in  regard  to  the 
naturalization  of  foreigners.  Thus  Buer  (Const.  Jurisprudence,  p, 
298),  and  other  authors,  on  the  Constitution,  speaks  of  its  "  not 
authorizing  any  but  WHITE  persons  to  become  citizens,"  ( the 
capitals  are  Duer's,)  when  not  the  Constitution,  but  the  act  of 
179i,  limits  naturalization  to  whites  of  foreign  birth.  The  Con- 
stitution says  nothing  about  the  color  of  citizens,  whether  natural 
born  or  naturalized. 

But  be  the  origin  and  cause  of  this  prevalent  opinion  what  it 
may,  the  opinion  prevailed  in  the  Senate,  and  it  was  to  meet 
and  accommodate  the  feeling  that  grew  out  of  it,  that  the  joint 
resolution  of  the  two  Houses  of  Congress  was  passed,  limiting 
the  effect  of  the  forfeiture  of  real  estate.  The  phraseology  of 
that  resolution  is  worthy  of  notice.  It  says :  "  Nor  shall  any 
punishment  or  proceeding  under  said  act  be  so  construed  as  to 
work  forfeiture  of  the  real  estate  of  the  offender  beyond  his  natural 
life:^ 

But  why  make  the  discrimination  between  real  and  personal 
estate  ?  It  is  true  that  it  is  easy  to  identify  and  restore  the  one, 
and  difficult,  if  not  impossible,  to  restore  the  other.  But  the 
Constitution  makes  no  such  distinction.     Nor  did  the  English  law, 


21 

so  far  as  I  have  been  able  to  discover,  Comyn  says  (Digest,  Vol. 
IV.,  p.  222,)  "  if  the  owner  is  attainted  for  high  treason,  he  forfeits 
all  his  lands  and  tenements,  goods  and  chattels."  Even  when 
there  was  no  corruption  of  blood,  the  land  held  in  fee  simple 
was  forfeited  to  the  King  for  a  year  and  a  day,  and  after  that,  it 
escheated  to  the  lord,  and  the  alienation  from  the  oifender  and 
his  heirs  was  as  absolute  as  if  there  had  been  only  simple  confis- 
cation. If,  therefore,  constitutional  scruples  were  the  ground  of 
this  resolution,  it  is  difficult  to  see  why  it  should  have  taken  this 
form.  If  the  Constitution  intended  to  prohibit  forfeitures  which 
should  alienate  property  beyond  the  lifetime  of  the  offender,  this 
resolution  does  not  go  far  enough.  It  should  protect  personal 
property  as  well  as  real. 

Another  remark  occurs  in  comparing  the  words  of  the  resolu- 
tion with  those  of  the  Constitution.  The  words  of  the  Consti- 
tution are:  "forfeiture  except  during  the  life  J''  The  words  of  the 
resolution  are :  "  beyond  his  natural  lifej^  Here  is  a  manifest 
discrepancy.  If  Congress  meant  the  same  as  the  framers  of  the 
Constitution,  why  depart  from  their  words?  I  don't  think 
they  could  find  better  ones.  But  the  words  of  the  Constitution, 
as  I  have  argued,  intended,  simply,  that  forfeiture  is  an  act 
which,  by  the  Constitution,  cannot  take  place  except  during  the 
life  of  the  offender;  how  long  soever  its  consequences  may 
last  —  while  the  words  of  the  resolution  imply,  by  "forfeiture," 
not  the  act,  but  the  consequences  of  the  act;  since  these  could, 
but  that  could  not,  by  its  very  nature,  last  beyond  the  moment 
when  it  became  complete.  This  discrepancy  is  certainly  signifi- 
cant, and  shows,  it  seems  to  me,  most  clearly  and  conclusively, 
that  either  Congress  did  not  pass  this  resolution  out  of  regard  to 
the  restriction  of  the  third  clause  of  the  third  article  of  the 
Constitution,  or  else  that  they  had  in  their  minds,  as  the  meaning 
of  the  clause,  an  idea,  which  the  framers  of  the  Constitution 
never  intended  to  express  by  the  words  which  they  used. 

And  this  brings  me  again  to  the  opinions  already  expressed, 
namely,  that  the  prevalent  views  on  the  subject  are  based  on  the 
act  of  1790,  rather  than  upon  the  Constitution  itself.  In  passing 
that  act,  just  as  in  providing  for  the  naturalization  of  foreigners, 
Congress  clearly  did  not  aim  to  interpret  the  Constitution,  and  to 
go  to  the  utmost  extent  which  it  would  allow.    They  aimed  rather 


22 

to  keep  cleady  within  its  prescribed  limits,  leaving  a  reserve  of 
power  for  more  pressing  necessities  and  greater  emergencies. 

I  am  w'ellaware  of  the  grand  principle  declared  by  the  Supreme 
Court,  (1  Cranch,  299,)  that  any  usage  under  the  Constitution 
which  arose  at  the  time,  and  has  been  continued  ever  since,  as 
an  interpretation  of  the  Constitution,  will  fix  upon  it  a  meaning 
that  ought  not  ever  to  be  departed  from.  But  the  statutes,  just 
referred  to,  cannot  be  regarded  in  the  light  of  an  exposition  or 
interpretation  of  the  Constitution,  although  they  were  passed,  in 
part,  at  least,  bj  men  who  had  participated  in  the  formation  of 
that  instrument.  They  are  an  expression  of  their  sense  of  its 
meaning,  so  far  as  those  acts  imply  a  belief  on  their  part  that 
they  had  a  right  to  pass  such  acts,  that  is,  acts  limiting  the  pun- 
ishment of  treason  to  the  death  of  the  offender  without  forfeiture 
of  his  property,  and  naturalization  to  white  persons  of  European 
descent.  But  those  acts,  neither  by  their  phraseology,  nor  by 
the  act  of  passing  them,  imply  any  doubt  on  the  part  of  the  men 
who  composed  those  Congresses,  that  they  had  a  right  to  go 
further  and  alienate  property,  real  as  well  as  personal,  by  for- 
feiture to  the  government  and  its  use  forever. 

I  have  discussed  this  question  simply  as  a  matter  of  interpre- 
tation of  the  meaning  of  the  Constitution.  I  have  said  nothing, 
and  I  do  not  intend  to  say  anything  of  the  expediency  of  apply- 
ing, what  I  conceive  to  be  clearly  written,  the  power  of  Congress 
to  those  who  are  now  in  open  resistance  against  the  General  Gov- 
ernment. I  should  certainly  be  disposed  to  deal  as  tenderly  as 
any  one  with  the  masses  of  the  people  w^ho  have  been  drawn  into 
this  most  unnecessary  rebellion.  But  of  this  I  did  not  design  to 
speak.  Let  us  suppress  this  rebellion,  as  I  have  no  doubt  we 
shall,  and  we  may  congratulate  ourselves  and  the  world  upon  the 
ultimate  and  final  triumph  of  the  principles  of  political  freedom 
and  self-government — a  Government  which  is  "  of  God  and  not 
of  men,"  and  under  which,  in  the  language  of  the  Declaration  of 
Independence,  "all  men  are"  in  fact  as  well  as  in  theory,  "  created 
equal  and  ordained  by  their  Creator  with  the  inalienable  rights 
of  life,  liberty  and  the  pursuit  of  happiness." 

And  in  conclusion,  my  dear  Judge,  permit  me  to  say,  that  I 
should  hardly  have  undertaken  the  discussion  of  subjects  which 
properly  belong  to  your  profession,  but  for  the  consideration,  that 


23 

we  live  in  troublous  times,  when  our  country  is  in  need  of  the 
services  of  all  her  loyal  sons — in  times  when  we  should  not  be 
too  fastidious  about  mere  forms  of  decorum  and  professional  cour- 
tesy — when  he  who  can  say  a  word  or  do  a  deed  for  his  coun- 
try's cause  should  not  withhold  his  hand.  I  have  not  so  learned 
Christianity  as  to  understand  how  one  can  be  faithful  to  his  God 
who  is  not  engaged  to  his  country,  and  who,  after  his  duty  to  his 
God,  will  not,  in  every  hour  of  her  peril  and  of  her  need,  rush  to 
her  service. 

I  have  the  honor  to  be,  my  dear  Judge, 
your  friend  and  fellow  servant, 

in  the  service  of  God  and  our  Country, 

W.  D.  WILSOK 
Geeene,  N.  Y.,  March  24th,  1862. 


Geneva,  March  29,  1863. 
Kev.  W.  D.  Wilson,  D.  D. 

Dear  Sir  —  I  have  read  your  discussion  of  the  punishment  of 
treason,  in  the  fonn  of  a  letter  addressed  to  me,  with  great  inte- 
rest and  satisfaction.  You  are  entirely  correct  in  saying  that 
your  views  accord  with  mine  on  that  subject,  and  it  gives  me 
pleasure  to  learn,  that  my  suggestions  have  been  of  service  to 
you  in  your  investigation  of  it. 

Our  fathers,  in  framing  our  Constitution,  have  provided  for  us 
a  humane,  yet  efficient  mode  of  punishing  treason.  In  this,  as 
in  everything  else,  they  have  done  well.  To  enable  us  to  under- 
stand the  mode  they  have  marked  out  for  punishing  this  highest 
of  crimes,  we  must  bring  to  view  and  keep  before  us  the  modes 
in  which  it  was  punished  in  England  when  our  Constitution  was 
adopted. 

At  that  time,  treason  was  punished  in  England  in  two  ways : 
one,  by  trial  and  conviction  of  the  traitor  in  a  court  of  law ;  the 
other,  by  an  Act  of  Parliament  denouncing  his  guilt  and  punish- 
ment. 

These  Acts  of  Parliament,  called  "Bills  of  Attainder,"  were 
passed  against  traitors,  both  living  and  dead,  and  denounced 


punishments,  more  or  less  severe,  according  to  the  estimate 
which  the  Parhament,  who  passed  the  act,  formed  of  the  crime 
of  the  person  against  whom  it  was  passed. 

When  a  traitor  was  tried  in  court,  found  guilty  by  a  jury,  and 
judgment  pronounced  against  him,  forfeiture  to  the  crown  of  his 
property  real  and  personal,  and  corruption  of  his  blood  followed, 
among  other  disabilities,  as  legal  sequences  of  the  judgment 
against  him.  When  a  traitor  was  condemned  and  punished  by 
an  act  of  Parliament,  the  punishment  was  such  as  the  Parliament 
saw  fit  to  denounce.  In  case  the  traitor,  thus  condemned  and 
punished,  was  living  when  the  act  was  passed,  the  judgment 
denounced  against  him  was  generally,  and  almost  alwaj's,  death, 
forfeiture  of  his  property  real  and  personal,  and  corruption  of 
his  blood ;  and,  in  case  the  traitor,  thus  condemned  and  punished, 
was  dead  when  the  act  was  passed,  the  judgment  denounced 
against  him  was,  forfeiture  of  his  property  real  and  personal, 
which  he  owned  when  in  life,  and  corruption  of  his  blood. 

In  these  modes  of  punishing  treason,  which  prevailed  in  Eng- 
land when  our  Constitution  was  adopted,  three  things  were  most 
unjust  and  cruel.     They  were. 

First.  Condemning  and  punishing  a  man  by  a  legislative  act, 
which  not  only  adjudged  him  guilty  without  giving  him  an 
opportunity  for  defense,  but  declared  his  acts  criminal,  after 
they  had  been  committed. 

Second.  The  blood  of  the  traitor  was  corrupted,  which  inflicted 
an  injury  owly  on  his  innocent  heirs. 

Third.  Passing  an  act  of  attainder  against  a  man  after  he  was 
dead,  and  forfeiting  his  property  to  the  Crown,  after  it  had  passed 
by  descent  to  his  heirs,  and  thus  punishing  his  innocent  heirs 
and  them  only. 

Our  fathers  determined  that  none  of  these  three  iniquities 
should  be  practised  under  the  government  they  formed  for  us. 
They  put  an  end  to  the  first  one,  by  the  clause  in  the  Constitu- 
tion which  declares  that,  "  No  bill  of  attainder  or  ex  post  facto 
law  shall  be  passed ;"  and  to  the  second  and  third  ones,  by  the 
clause,  which  declares  that,  "No  attainder  of  treason  shall  work 
corruption  of  blood,  or  forfeiture,  except  during  the  life  of  the 
person  attainted." 


25 

The  Constitution  confers  on  Congress  "  power  to  declare  the 
punishment  of  treason."  This  enables  Congress,  by  prospective 
legislation,  to  occupy  the  whole  range  of  punishment  against 
traitors ;  and  denounce  upon  them  the  loss  of  life,  liberty,  property, 
and  all  civil  rights.  The  only  restriction  on  the  exercise  of  this 
power,  confines  it  to  the  guilty  traitor  himself,  and  does  not 
allow  it  to  reach  his  innocent  heirs,  by  corrupting  his  blood,  or 
forfeiting  his  property  after  he  is  dead. 

It  appears  by  a  message  from  the  President  to  Congress,  after 
the  confiscation  act  was  submitted  to  him  for  approval,  that,  in 
his  opinion,  the  clause  in  the  Constitution,  viz. :  "  or  forfeiture, 
e-jcept  during  the  life  of  the  person  attainted,"  limited  the  power 
of  Congress  in  declaring  the  punishment  of  treason,  to  a  forfeiture 
of  a  traitor's  life  interest  in  his  real  estate,  or  in  other  words,  that 
a  forfeiture  of  his  real  estate  should  not  operate  upon,  or  afiect 
such  estate,  beyond  the  period  of  his  life.  Although  the  Presi- 
dent in  his  message  remarks,  "that  the  provision  in  the  Consti- 
tution, put  in  language  borrowed  from  Great  Britain,  applies 
only  in  this  country,  as  I  understand,  to  real  or  landed  estate," 
yet,  with  the  most  profound  respect  for  so  high  an  authority, 
and  with  great  diffidence  in  my  own  professional  knowledge 
and  research,  I  must  say,  that  I  neither  know,  nor  can  find,  any- 
thing written  or  spoken,  in  this  country  or  in  England,  showing, 
or  tending  to  show,  that  this  clause  of  the  Constitution  relates 
only  to  real  property,  and  does  not  apply  to  personal.  There  is 
no  intimation  of  any  such  distinction  in  the  Constitution ;  nor 
does  there  appear  to  be  any  reason  why  the  personal  property 
of  a  traitor  should  be  forfeited  absolutely,  and  his  real  property 
only  qualifiedly.  I  speak  on  this  subject  freely,  as  I  am  sure  there 
are  no  gentlemen  in  this  country,  who  would  be  more  ready  to 
admit,  and  if,  in  their  power,  correct  an  error,  than  our  true  and 
faithful  President,  and  his  learned  and  able  legal  adviser. 

The  error  which  has  arisen  respecting  this  clause  of  the  Con- 
stitution, proceeds  probably  from  two  sources  —  one,  in  not  giv- 
ing due  consideration  to  the  cruel  and  unjust  mode  of  punishing 
treason,  which  it  was  intended  to  prohibit  —  the  other,  in  omit- 
ting to  ascertain  and  duly  regard  the  true  meaning  and  legal  effect 
of  the  term  '■^ forfeiture.''^  Scarcely  any  word  occurs  more  frequent- 
ly in  the  system  of  jurisprudence  which  prevails  in  this  country 
and  England.     Long  before  our  Constitution  was  adopted,  it  had 


26 

acquired  and  still  has,  a  clear,  definite,  and  well  established  mean- 
ing. It  simply  and  solely  means  a  mode  of  changing  title  to 
property.  It  expresses  an  act  by  which  title  to  property  passes 
from  one  to  another.  It  has  all  the  characteristics  of  a  bill  of 
sale  of  personal  property,  and  a  conveyance  of  real  estate ;  and 
with  one  exception  is  identical  with  them.  When  title  to  pro- 
perty is  changed  by  bill  of  sale,  or  conveyance,  the  owner  parts 
with  it  voluntarily  for  a  consideration  received.  When  it  is 
changed  by  forfeiture,  the  title  is  taken  from  the  owner  against 
his  will,  to  punish  him  for  his  crime.  But  in  each  case,  the  act 
of  changing  title  is  in  itself  single,  complete  and  finally  ended  as 
soon  as  performed.  If  we  should  substitute  in  the  clause  of  the 
Constitution  in  question,  the  meaning  and  legal  effect  of  the  word 
'■'•forfeiture^''  in  the  place  of  the  word  itself,  the  clause  would  then 
read  as  follows :  "Or  take  from  a  traitor  his  title  to  his  property, 
except  during  his  life."  On  such  a  reading  it  is  quite  clear,  that 
no  more  appropriate  terms  could  be  used  to  prohibit  taking  his 
property  from  his  heirs  after  his  death.  Giving,  therefore,  to  the 
word  ^'■forfeitures''  its  true  meaning  and  legal  effect,  there  would 
seem  to  be  no  doubt  about  the  construction  of  this  clause  of  the 
Constitution,  and  about  the  purpose  for  which  our  fathers  intro- 
duced it  into  that  sacred  Instrument. 

It  is  deeply  to  be  regretted  that  the  resolution  explanatory  of 
the  confiscation  act  was  ever  passed,  and  if  it  was  necessary  to 
pass  it,  that  it  was  not  passed  in  the  very  words  of  the  Constitu- 
tion. As  passed,  it  reads  thus :  "  Nor  shall  any  punishment 
or  proceedings  under  said  act  be  so  construed  as  to  work  a  for- 
feiture of  the  real  estate  of  the  offender  beyond  his  natural  life." 

The  passage  of  this  resolution  was,  beyond  all  question  or 
doubt,  intended  to  prevent  the  confiscation  act  from  being 
exposed  to  the  charge  of  violating  the  clause  of  the  Constitution 
in  question,  by  subjecting  the  provisions  of  it  to  the  Constitutional 
restriction,  although  the  language  of  the  resolution  may  express 
a  limitation  upon  the  act,  which  the  clause  of  the  Constitution 
does  not  require. 

If  the  act  violates  the  Constitution,  it  does  so  as  fully  and 
effectually  with,  as  without  the  explanatory  resolution ;  for  the 
act  forfeits  absolutely  the  personal  property  of  the  rebels,  and 
unless  it  can  be  shown,  that  this  kind  of  property  is  excluded 
from  the  operation  of  this  clause  of  the  Constitution,  while  real 


27 

estate  is  not,  the  confiscation  act  clearly  violates  it.  But  as  the 
intention  of  Congress  in  passing  the  Joint  Resolution  is  manifest, 
viz. :  to  conform  the  act  to  the  Constitution ;  our  courts  will 
probably  apply  to  the  subject  the  well  settled  rule  of  the  con- 
struction of  statutes,  which  requires  courts  to  carry  into  effect 
the  intention  of  the  legislature,  and  hold,  that  the  Joint  Resolution 
means  the  same  thing  as  the  clause  in  the  Constitution,  and  thus 
our  confiscation  act  will  accomplish  the  great  and  salutary  objects 
which  Congress  designed  to  effect  by  its  enactment. 

The  variety  of  views,  the  protracted  discussions,  and  the  late 
day  of  the  session,  on  which  the  Joint  Resolution  was  passed, 
probably  prevented  the  new  phase  of  the  subject  presented  by 
the  President;  from  receiving  that  full  and  thorough  investi- 
gation which  it  would  have  received  under  other  circumstances. 

The  acts  of  our  Thirty-Seventh  Congress  will  fill  a  volume  in 
our  national  history,  unsurpassed  by  those  of  any  Congress  since 
the  adoption  of  the  Constitution,  not  even  excepting  the  First 
One.  The  faithful,  wise  and  patriotic  labors  of  the  majority 
will  give  every  member  of  it,  an  enduring  place  in  the  hearts  of 
his  countrymen,  and  his  name  will  be  remembered  and  honored 
as  long  as  our  national  flag  waves 

"  O'er  the  land  of  the  free  and  the  home  of  the  brave." 

The  wonder  is  not,  that  a  single  resolution  may  have  passed 
near  the  close  of  a  long  and  laborious  session,  without  a  close 
scrutiny  of  its  language,  and  a  full  and  thorough  investigation 
of  its  bearings ;  but  the  wonder  is,  that  a  Congress,  sitting  and 
deliberating,  as  the  Thirty  Seventh  Congress  did,  amid  a  terrific 
civil  war,  could  have  fully  met  every  want  of  the  nation,  and 
adopted  every  measure,  which  the  honor,  interests  and  safety  of 
the  country  required. 

Respectfully  your  obedient  servant, 

SAMUEL  A.  FOOT. 


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